E-Discovery 2.0

by Ira P. Rothken

When discovery moved out of the filing cabinet and onto the desktop computer, it became e-discovery. Today, as the field expands to include cloud computing, data from smartphones, and recording devices in cars, a new era is dawning: E-Discovery 2.0. This month we consider five types of high-tech devices that are sure to test the rules of privacy, proportionality, preservation, and burden in e-discovery.

Smartphones
Nothing represents E-Discovery 2.0 better than smartphones, those pocket-size computers such as iPhones and BlackBerrys. Smartphones can store personal data on local memory chips, and on desktop computers and remote servers. Smartphones may also gather global positioning system (GPS) data that can reveal travel patterns. Preserving smartphone data is quickly becoming the e-discovery norm. One federal court, for example, has already sanctioned a party for failing to preserve smartphone data (Southeastern Mech. Servs., Inc. v. Brody, 657 F. Supp. 2d 1293 (M.D. Fla., 2009)).

You can expect smartphone discovery requests to permeate e-discovery disputes as courts wrestle with privacy, proportionality, and burden. For example, if a company's sales force uses 20,000 smartphones, an argument can be made that the cost of discovery is burdensome, as outlined in California's Electronic Discovery Act (C.C.C.P. § 2031.060(f)).

Server Log Data
Today, nearly every business case involving e-commerce will require discovery of server logs. These electronic listings generally describe every data "transaction" (with the time, date, user's IP address, and such) between customers and company servers, showing who has clicked on a website and where they are located. One federal court in California found such files so relevant that it ordered the defendant, a web services provider, to activate such logging (Columbia Pictures, Inc. v. Bunnell, 245 F.R.D. 443 (C.D. Cal. 2007)).

A related area is web analytics. Companies can now track nearly every type of website activity, then display graphic reports on a site's popularity and traffic patterns, for example. If your case involves a website, plan to request server-log data and related web analytics.

Little Black Boxes
Personal injury attorneys will get their own chance at E-discovery 2.0, thanks to "black boxes," GPS devices, and other onboard computers built into cars and buses. Like the black boxes used in airplanes, those in vehicles capture and store data such as a car's brake status and speed at the time of impact in the case of a crash.

In the event of a collision, lawyers may need to either send a request for black-box data to whomever has control of the vehicle, or advise clients to preserve data. In one case, an issue arose when a bus company failed to preserve a black box that contained evidence relevant to a crash (Greyhound Lines, Inc. v. Wade, 485 F.3d 1032, 1035 (8th Cir. 2007)).

Radio ID Tags
Radio-frequency identification (RFID) tags are computer chips used primarily for credit or debit card payments, or to identify and track merchandise, people, equipment, and animals. The tags generate huge amounts of data that may be relevant in a wide variety of cases, from trademark disputes to contract claims.

If you are seeking RFID data, it would be wise to specifically request it in your preservation letter. If your client controls RFID data, then you may need to advise the client to preserve it, while also discerning whether there are any appropriate objections to production.

ASP Services and Cloud Data
Application service providers (ASPs), make software applications available via the Web. The applications themselves are often referred to as software as a service (SaaS). Salesforce.com, for example, runs software in a browser over the Internet and stores data in a "cloud" (a remote set of servers controlled by ASPs) rather than on a local hard drive or server. In Equity Analytics, LLC v. Lundin (248 F.R.D. 331 (D.D.C. 2008)), the plaintiffs accused a former employee of accessing data in its Salesforce.com account after he had been fired.

If you represent a client who is seeking data from an ASP, you must keep in mind that in fact two parties may control the data - the customer who created the data, and the ASP that stores and maintains the data. For this reason, you may want to recommend that your clients work only with ASPs that have robust data-preservation systems - or else prepare yourself for a litigation-hold conundrum if the client's ASP doesn't have the tools to prevent data from being overwritten and deleted.

Ira P. Rothken is a high-tech litigator, founder of The Rothken Law Firm in Novato, and a member of the Sedona Conference, an e-discovery think tank.

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